The Problems of Indirection

The Problems of Indirection

In 1985, after years of inaction, Congress passed the Low Level Radioactive Waste Policy Amendments Act to deal with the problem of nuclear waste. Someone needed to take and store nuclear waste.[55] After sufficient prodding by the government, a number of states formed a compact, which Congress then ratified, implementing a number of requirements and incentives for states to deal with the nuclear waste they produce.

The details of the overall plan are not important here. It is enough to focus on just one part. To induce states to follow federal guidelines for regulating nuclear waste, Congress gave them a choice: Either enact certain regulations or “take title” to the spent nuclear fuel. This was a “your money or your life” regulation, for the fuel to which the states would take title was not an asset but a great liability. In a very heavy-handed way, Congress was essentially forcing states to pass the regulations it wanted.

The Supreme Court struck down this part of the law. In effect, the Court held, Congress was commandeering the state legislatures to enact Congress’s law. Congress itself, of course, had the power to enact those regulations directly. But it did not have the power to order states to enact laws. Indirection here was not allowed.

This case — New York v. United States — does not stand for the broad principle that government must regulate only directly, or even for the principle that indirect regulation generally is disfavored. The case was focused quite narrowly on the question of indirection as it involved the states. The most New York stands for is the idea that states, as independent sovereigns deserving of special constitutional respect, cannot be co-opted to the federal government’s ends — that when the federal government has a program it wants to carry out, it must put its own name behind it.

But while New York doesn’t establish a general constitutional principle, it does suggest why indirection should be a more general concern.

Indirection misdirects responsibility. When a government uses other structures of constraint to effect a constraint it could impose directly, it muddies the responsibility for that constraint and so undermines political accountability. If transparency is a value in constitutional government, indirection is its enemy. It confuses responsibility and hence confuses politics[56].

Such misunderstandings are possible in other contexts as well. Think again about the case of Rust. The federal government helps to fund family planning clinics. (“Helps” fund, not completely funds.[57]) Before 1988 these clinics gave advice on a wide range of birth-related topics, including abortion. Doctors in family planning clinics would advise their patients about abortion whenever they felt such advice was proper.

The Reagan administration wanted to change that, so it ordered (the details of how are not important here) doctors in those clinics to not discuss abortion as a method of family planning with their patients. If asked, the doctors were to say, “The project does not consider abortion an appropriate method of family planning.[58]”

The aim of this regulation was clear: to reduce the incidence of abortion. It did this by using doctors to steer patients away from abortion. A doctor has a great deal of power over a patient in a context like this, and the patient would most likely believe the doctor was recommending against abortion.

But notice the technique. The federal government could have stated its own position about abortion. It could have put up posters and billboards saying that abortion is wrong, or it could have used space in its clinics to advertise its view. But it chose instead to bury its policy choice in the words of doctors. It thereby could trade on the professional authority of the doctors to advance its own ends. It could regulate abortion indirectly by regulating the doctors directly.

Just as it tried to use the authority of the states to effect its ends in New York, the government trades on a misrepresentation in Rust. But worse than in the federalism context, the victim of the misrepresentation here does not even realize that the misrepresentation is a policy choice. The patient is unlikely to hear the doctor’s statement as a political broadcast from the government; she is most likely to hear it as a medical opinion. Not only is there a confusion about who is responsible for the opinion expressed, but there is also confusion about whether it is an opinion at all.

Rust v. Sullivan is one of the great embarrassments of the Supreme Court — the case proving Justice Scalia’s rule that any issue gets distorted once it gets near the question of abortion[59]. But my argument here doesn’t depend upon whether Rust was right. My aim is to bring out a certain sensibility about regulation; Rust simply points the way.

Consider a third case. Until 1948 deeds could include covenants (promises) that the property covered by the deed could not be sold to people of a particular race. The purpose of these provisions was clear: to effect and preserve segregation. Their use was extensive. It was estimated, for example, that when Shelley v Kraemer[60] struck these provisions down as unconstitutional under the equal protection clause, 25 percent of the properties in south Chicago had been prohibited from sale to African Americans[61].

As awful as such provisions were, they had a certain integrity. They clearly stated their purpose and were transparent about the values they affirmed. No one could pretend that the segregation they effected was somehow an accidental by-product of decisions made elsewhere. Although they were private covenants, they were enforced by the state and, indeed, derived their meaning from the state. They said: This society is racist.

When the Court struck these provisions down, however, the question became what would replace them. Few expected that the attitudes behind these covenants would suddenly disappear because of a single court judgment. So when the Court ended direct segregation, we should expect indirect segregation to emerge to replace it.

Sure enough, after 1948 local communities shifted their technique for preserving segregation. Rather than covenants, they used architecture. Communities were designed to “break the flow” of residents from one to another. Highways without easy crossings were placed between communities. Railroad tracks were used to divide. A thousand tiny inconveniences of architecture and zoning replaced the express preferences of covenants. Nothing formally prohibited integration, but informally, much did[62].

Local governments thus did something very much like what the federal government did in Rust and tried to do in New York: No longer able to effect segregation directly, they used zoning laws — geographical architecture, or real-space code — to effect it indirectly. They built their communities and designed their streets to make it hard for integration to occur, and the tiny inconveniences of zoning regulations succeeded in keeping communities separate.

What is most significant is that now, even more than with Rust, it becomes very difficult to see the link between the regulation and its consequence. The continuing segregation of these communities is described as the product of “choice.” Individuals choose to live in one neighborhood rather than another. In a strict sense, that is correct, but their choices are made in the face of costs that the state has imposed. It is easier to remain segregated, so people choose to do that. But it is only easier because government has moved mountains to make it that way.

Here the government is regulating indirectly by using the structures of real-space code to effect its ends, but this regulation, again, is not seen as regulation. Here the government gets an effect at no political cost. It gets the benefit of what would clearly be an illegal and controversial regulation without even having to admit any regulation exists.

In all three cases, the government is commandeering the power of another modality — another structure of constraint — to effect its own ends[63]. This in itself is not necessarily improper. There are plenty of examples that anyone would consider proper. A requirement that streets be well lit, for instance, is a regulation designed to reduce crime, and no one would think that regulation improper. Nor does all such regulation hide its pedigree. Think again about speed bumps –they are examples of indirect regulation. Like a winding road, they use the code of streets to keep down the speed of a car. But no one is fooled about the source of this regulation; no one believes the bumps are accidental.

Thus, the point is not against indirect regulation generally. The point is instead about transparency. The state has no right to hide its agenda. In a constitutional democracy its regulations should be public. And thus, one issue raised by the practice of indirect regulation is the general issue of publicity. Should the state be permitted to use nontransparent means when transparent means are available?